SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3313-16T1

RAYMOND VERAS, on

behalf of himself and

all other similarly 

situated persons,

Plaintiff-Appellant,

v.

INTERGLOBO NORTH

AMERICA, INC., and

INTERGLOBO LOGISTICS, LLC,

Defendants-Respondents.

______________________________

Argued telephonically September 12, 2018 – Decided

Before Judges Rothstadt and DeAlmeida.

On appeal from Superior Court of New Jersey, Law 

Division, Hudson County, Docket No. L-3191-16.

Ravi Sattiraju argued the cause for appellant (The 

Sattiraju Law Firm, PC, attorneys; Ravi Sattiraju, of 

counsel and on the briefs; Anthony S. Almeida, on the 

briefs).

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

October 29, 2018
2

A-3313-16T1

Francesco Di Pietro (Moses & Singer, LLP) of the New 

York bar, admitted pro hac vice, argued the cause for 

respondents (Moses & Singer, LLP, attorneys; John V. 

Baranello, on the brief).

PER CURIAM

Plaintiff Raymond Veras appeals from the Law Division's December 16, 

2016 order dismissing his "class action complaint" under Rule 4:6-2(e), and 

March 3, 2017 order denying reconsideration. The complaint asserted claims 

under the New Jersey Wage and Hour Law (WHL), N.J.S.A. 34:11-56(a) to -

56(a)38, and the New Jersey Wage Payment Law (WPL), N.J.S.A. 34:11-4.1 to 

-4.14, against defendants, Interglobo North America Inc. (INA) and Interglobo 

Logistics, LLC (ILLLC). In his complaint, plaintiff alleged that defendants

employed him and other members of the putative class as "truck drivers and/or 

deliverers" for defendants' freight forwarding businesses. In response to the 

complaint, defendants filed a motion to dismiss, contending plaintiff did not 

have standing to sue, relying upon a June 2014 signed agreement between 

ILLLC and plaintiff's company, a Florida corporation formed in 2006, for the 

services plaintiff alleged he provided as an employee of defendant.

1

 After

 

1

 This information was provided through the two certifications filed in support 

of the motion. One certification, dated January 12, 2016, was from one of 

defendants' officers, which notified the court about the agreement and described 
3

A-3313-16T1

considering the terms of the agreement, the motion judge dismissed the 

complaint without prejudice2after finding that the matter was a contract dispute

and that plaintiff did not have an individual right to assert his claims against 

defendants. The same judge denied plaintiff's motion for reconsideration. This 

appeal followed.

On appeal, plaintiff asserts that in dismissing his complaint, the motion

judge failed to appreciate that the wage laws upon which plaintiff relied were 

"humanitarian pieces of legislation that must be construed liberally." He also 

argued that by treating plaintiff's claims as a contract dispute, the motion judge

failed to apply the Supreme Court's holding in Hargrove v. Sleepy's LLC, 220 

N.J. 289 (2015), relating to "employment-status disputes." For the reasons that 

follow, we reverse.

 

plaintiff's company's obligation to perform services under the agreement. The 

other was defendants' counsel's October 18, 2016 certification that provided 

information about plaintiff's company's incorporation in Florida. No other facts 

were presented to the court.

2

 Despite the "without prejudice" designation, we are satisfied that the order 

disposed of all claims between the parties to this dispute, as no amendment to 

the complaint could remove the impediment to proceeding as determined by the 

motion judge. See Silviera-Francisco v. Bd. of Educ. of City of Elizabeth, 224 

N.J. 126, 136 (2016). 
4

A-3313-16T1

"We review a grant of a motion to dismiss a complaint for failure to state 

a cause of action de novo, applying the same standard under Rule 4:6-2(e) that 

governed the motion court." Wreden v. Twp. of Lafayette, 436 N.J. Super. 117, 

124 (App. Div. 2014). At the outset, the standard of our review for dismissal of 

a complaint under that rule, is whether the pleadings even "suggest[]" a basis for 

the requested relief. Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 

739, 746 (1989). As a reviewing court, we assess only the legal sufficiency of 

the claim. Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div. 2005). 

Consequently, "[a]t this preliminary stage of the litigation [we are] not 

concerned with the ability of plaintiffs to prove the allegation contained in the 

complaint." Printing Mart, 116 N.J. at 746. Rather, we accept the factual 

allegations as true, Sickles, 379 N.J. Super. at 106, and "'search[] the complaint 

in depth and with liberality to ascertain whether the fundament of a cause of 

action may be gleaned even from an obscure statement of claim[.]'" Printing 

Mart, 116 N.J. at 746 (quoting Di Cristofaro v. Laurel Grove Memorial 

Park, 43 N.J. Super. 244, 252 (App. Div.1957)). "However, we have also 

cautioned that legal sufficiency requires allegation of all the facts that the cause 

of action requires." Cornett v. Johnson & Johnson, 414 N.J. Super. 365, 385 

(App. Div. 2010), aff'd as modified, 211 N.J. 362 (2012). In the absence of such 
5

A-3313-16T1

allegations, the claim must be dismissed. Ibid. (citing Sickles, 379 N.J. Super. 

at 106).

According to defendants here, our application of the standard governing 

consideration of a motion to dismiss under the Rule and of the contract upon 

which defendants relied, should lead us to the same conclusion that the motion 

judge reached – plaintiff did not have standing to bring this action. We disagree.

Whether a party has standing to pursue a claim is a question of law subject 

to our de novo review. People For Open Gov't v. Roberts, 397 N.J. Super. 502, 

508 (App.Div.2008) (citing Manalapan Realty, LP v. Twp. Comm. of 

Manalapan, 140 N.J. 366, 378 (1995) ("The issue of standing is a matter of law 

as to which we exercise de novo review.")). We therefore accord no "special 

deference" to the "trial court's interpretation of the law and the legal 

consequences that flow from established facts." Manalapan Realty, 140 N.J. at 

378; Cherokee LCP Land, LLC v. City of Linden Planning Bd., __N.J. __, __ 

(2018) (slip op. at 7). 

Turning to plaintiff's complaint, there was no dispute that it stated 

sufficient facts that, if proven, established plaintiff's standing to pursue his 

claims as an employee under the wage laws he specifically pled. In his 

complaint, plaintiff alleged that as part of his employment with defendants, he 
6

A-3313-16T1

was "assigned to perform non-exempt tasks" in the trucking and delivery of 

freight for defendant. He alleged that defendants "controlled the manner and 

means" in which he performed his duties, and that he worked from defendants'

"Jersey City location," received directions from defendants and their employees, 

was required to wear defendants' companies' uniforms, and "handled paperwork 

and invoices with [d]efendants' customers." Moreover, he was subject to 

defendants' having the right to discipline and even terminate plaintiff from his 

employment.

The complaint also described how defendants handled plaintiff's 

compensation, including their having funds withdrawn from his pay to 

reimburse defendants for items such as "truck insurance and gas." Moreover, 

he asserted that he "routinely worked far in excess of forty (40) hours per week,"

but did not receive overtime pay as required by law. According to plaintiff,

defendants' failure to properly compensate him gave rise to his claims under the

WPL and WHL.

3

 However, plaintiff's complaint made no mention of the 

 

3

 The WPL "governs the time and mode of payment of wages due to employees." 

Hargrove, 220 N.J. at 302. "The WHL is designed to 'protect employees from 

unfair wages and excessive hours.'" Id. at 304 (quoting In re Raymour & 

Flanigan Furniture, 405 N.J. Super. 367, 376 (App. Div. 2009)). As the Court 

explained in Hargrove, 
7

A-3313-16T1

agreement between ILLLC and plaintiff's company. Plaintiff only alleged that 

defendants "misclassified [him] as an independent contractor[.]"

It was undisputed that on June 13, 2014, ILLLC and J&K Trucking 

Solution, Inc. (J&K), a Florida corporation owned by plaintiff, entered into a 

"Contractor Lease Agreement" (CLA). The CLA required J&K to make 

deliveries for ILLC. It stated that J&K is "an independent delivery operator with 

[its] own vehicle, equipment, employees[.]" The agreement specifically stated 

the following:

[B]oth [ILCC] and Contractor acknowledge and agree 

that [J&K] is an independent contractor and that he

shall have the sole and complete discretion to hire, 

regulate, discipline or discharge all personnel engaged 

by the Contractor to carry out the Contractor's 

obligations hereunder and to determine the manner and 

method in which such obligations shall be performed[.]

 

[Both] address the most fundamental terms of the 

employment relationship. The WPL is designed to 

protect an employee's wages and to assure timely and 

predictable payment. To that end, it directs the mode 

and time of payment. The WHL . . . establishes a 

minimum wage for employees and the overtime rate for 

each hour of work in excess of forty hours in any week. 

[Id. at 313 (citations omitted).]

As remedial statutes, "any question regarding the[ir] scope and application 

[requires us to be] mindful of the need to further [their] remedial purpose[s]." 

Id. at 304. 
8

A-3313-16T1

(Emphasis added). 

Additionally, the CLA stated J&K must pay all expenses incurred in the 

operation of "his business" including rent, wages, overhead, maintenance and 

repair of vehicles, insurance, etc. The CLA obligated J&K to furnish at least 

one vehicle to be used for deliveries for ILLLC and that the vehicle must be 

operated by a licensed driver. 

Against this background, plaintiff argues to us that at this stage of the 

litigation, the mere existence of the CLA should not be the basis for the dismissal 

of his complaint. Citing to the Supreme Court's opinion in Hargrove, plaintiff 

contends that despite the agreement, he was defendants' employee as 

contemplated by the WHL and WPL. Defendants contend Hargrove is 

inapplicable because the plaintiffs in that case individually signed an 

"Independent Driver Agreement [(IDA)]" directly with the defendant, who 

classified them as independent contractors. Here, defendants contend that 

plaintiff did not have the same individual relationship. Under these

circumstances, according to defendants, courts may not apply the test in 

Hargrove before determining who employed a plaintiff. Defendants contend

that Hargrove's contractor/employee inquiry would apply only to plaintiff's 
9

A-3313-16T1

relationship with J&K because there is no question that company employed 

plaintiff. We disagree. 

Defendants' contentions are factually and legally incorrect. First, 

Hargrove included claims by some plaintiffs who, like plaintiff here, entered

into independent contractor agreements through companies they owned or 

controlled.4 Second, even under defendants' legal argument, the dismissal of 

plaintiff's complaint at this stage, based solely on defendants' contract with 

plaintiff's company, was premature because the issue's resolution required 

additional evidence relating to whether, despite his company's agreement, 

plaintiff was actually employed by defendants for WHL and WPL purposes.

Neither party disputes that Hargrove "address[ed the] test for a plaintiff's 

employment status for purposes of [WPL and WHL]" claims. Estate of 

Kotsovska ex rel. Kotsovska v. Liebman, 221 N.J. 568, 589 (2015). In

Hargrove, the Court held "that any employment-status dispute arising under the 

 

4

 Hargrove came before the Court in response to "a question of law certified 

and submitted by the United States Court of Appeals for the Third Circuit 

pursuant to Rule 2:12A-1." Hargrove, 220 N.J. at 295. As described by the 

Third Circuit in its "Petition for Certification of Question of Law," several

plaintiffs who asserted WHL and WPL claims had entered into "IDAs with 

Sleepy's, either on behalf of business entities they controlled or on behalf of 

themselves." Hargrove v. Sleepy's, LLC, Nos. 12-2540, 12-2541, 2013 U.S. 

App. LEXIS 26204, at *3 (3d Cir. May 22, 2013) (Emphasis added).
10 A-3313-16T1

WPL and WHL should be resolved by utilizing the 'ABC' test set forth in 

N.J.S.A. 43:21-19(i)(6)(A)-(C)." Hargrove, 220 N.J. at 312.

The "ABC" test provides an analytical framework to 

decide whether a person . . . seeking the protection 

of . . . the WHL or . . . the WPL is an independent 

contractor or an employee. It presumes that the 

claimant is an employee and imposes the burden to 

prove otherwise on the employer.

[Id. at 314.]

The "ABC test," a "long-standing approach to resolving employmentstatus issues," id. at 316, refers to the three subparagraphs—(A), (B), and (C)—

in N.J.S.A. 43:21-19(i)(6), which define "employment" for purposes of the 

Unemployment Compensation Law (UCL). See N.J.S.A. 43:21-19(i)(6); Carpet 

Remnant Warehouse, Inc. v. New Jersey Dep't of Labor, 125 N.J. 567, 580-87 

(1991) (applying the "ABC test" to determine employment and eligibility for 

unemployment compensation). 

The ABC test is used to determine if a worker is an employee or 

independent contractor. N.J.S.A. 43:21-19(i)(6). "The 'ABC' test presumes an 

individual is an employee unless the employer can make certain showings 

regarding the individual employed[.]" Hargrove, 220 N.J. at 305. This test is 

set forth in the UCL as follows:
11 A-3313-16T1

Services performed by an individual for remuneration 

shall be deemed to be employment subject to this 

chapter ([N.J.S.A. 43:21-1 to -71]) unless and until it is 

shown to the satisfaction of the division that:

(A) Such individual has been and will 

continue to be free from control or 

direction over the performance of such 

service, both under his contract of service 

and in fact; and

(B) Such service is either outside the usual 

course of the business for which such 

service is performed, or that such service is 

performed outside of all the places of 

business of the enterprise for which such 

service is performed; and

(C) Such individual is customarily engaged 

in an independently established trade, 

occupation, profession or business.

[N.J.S.A. 43:21-19(i)(6).]

See also Hargrove, 220 N.J. at 305.

Part A is referred to as the "control test," Part B as the "course-of-business 

or location-of-work test," and Part C as the "independent-business test." Phila. 

Newspapers, Inc. v. Bd. of Review, 397 N.J. Super. 309, 320 (App. Div. 2007). 

It is up to the employer to prove each of the three prongs of the ABC test, and 

if each element is not met, then the claimant is an employee and is not an 

independent contractor. Hargrove, 220 N.J. at 305.
12 A-3313-16T1

In Hargrove, the Court explained the considerations under each part as 

follows:

In order to satisfy part A of the "ABC" test, the 

employer must show that it neither exercised control 

over the worker, nor had the ability to exercise control 

in terms of the completion of the work. In establishing 

control for purposes of part A of the test, it is not 

necessary that the employer control every aspect of the 

worker's trade; rather, some level of control may be 

sufficient. 

Part B of the statute requires the employer to show that 

the services provided were "either outside the usual 

course of the business . . . or that such service is 

performed outside of all the places of business of the 

enterprise." N.J.S.A. 43:21-19(i)(6)(B). While the 

common law recognizes part B as a factor to consider, 

it is not outcome determinative within the confines of 

the "right to control" test. 

Part C of the statute is also derived from the common 

law. This part of the test "calls for an enterprise that 

exists and can continue to exist independently of and 

apart from the particular service relationship. The 

enterprise must be one that is stable and lasting—one 

that will survive the termination of the relationship."

Therefore, part C of the "ABC" test is satisfied when an 

individual has a profession that will plainly persist 

despite the termination of the challenged relationship. 

When the relationship ends and the individual joins "the 

ranks of the unemployed," this element of the test is not 

satisfied. 

[Id. at 305-06 (citations omitted).]
13 A-3313-16T1

In undertaking the ABC test's analysis, a court is not limited to the terms 

of the contract between the parties. Whether an individual is an employee 

"should not be determined under the [a]greement alone, but rather on all facts 

surrounding [the individual's] relationship with [the employer], including the 

[a]greement. To consider only the [a]greement, and not the totality of the facts 

surrounding the parties' relationship, would be to place form over substance." 

Phila. Newspapers, Inc., 397 N.J. Super. at 321. This is a "fact-sensitive"

analysis where the substance, not the form of the relationship, is reviewed. 

Carpet Remnant Warehouse, 125 N.J. at 581-82. See also Provident Inst. for 

Sav. v. Div. of Employment Sec., 32 N.J. 585, 591 (1960); Trauma Nurses, 242 

N.J. Super. 135, 142 (App. Div. 1990). "[W]e are obliged to look behind 

contractual language to the actual situation—the status in which parties are 

placed by relationship that exists between them." Trauma Nurses, 242 N.J. 

Super. at 142 (citations omitted). "[N]o matter what the relationship may be 

called or how careful the parties to it may be in their attempt to create the 

impression" that an employment relationship did not exist, the court must "look 

through the form to the substance" to determine if it is exempt from the WPL 

and WHL. Provident Inst. for Sav., 32 N.J. at 591.
14 A-3313-16T1

While defendants recognize that if plaintiff individually entered into an 

agreement with defendants, Hargrove would apply, they argue that because 

plaintiff signed the agreement on behalf of his company, he needed to first 

establish that defendants, as compared to J&K, were his employers before a 

court could apply the ABC test. Defendants contend that the "economic realities 

test," relied upon in unpublished federal court cases, applies to the determination 

of who is the employer that is necessary before considering whether an employee 

is an independent contractor. The application of that test to WHL and WPL 

claims where an employer argues that a claimant is an independent contractor 

was specifically rejected by the Court in Hargrove, 220 N.J. at 310-12, 314-15.

5

 

 

5

 In rejecting this test the Court stated the

test utilizes a totality-of-the-circumstances framework 

guided by six criteria. No one factor is determinative. 

Rather, the test contemplates a qualitative rather than a 

quantitative analysis of each case. Such a test may then 

yield a different result from case to case. By contrast, 

requiring each identified factor to be satisfied to permit 

classification as an independent contractor, the "ABC"

test fosters the provision of greater income security for 

workers, which is the express purpose of both the WPL 

and WHL.

[Hargrove, 220 N.J. at 314-15 (citations omitted).]
15 A-3313-16T1

However, even if "the economic realities test" applied, dismissal of the 

complaint at this stage was not warranted based solely on the CLA. The

"economic realities test" is borrowed from the federal Fair Labor Standards Act, 

which contains virtually identical definitions of "employer" and "employee" as 

the definitions in the WHL. Under "the economic realities test," courts must 

examine the totality of the circumstances to determine whether the economic 

realities of the situation indicate that an employment relationship existed. 

Relevant factors include: (1) who hired and fired the workers, (2) who controlled 

and supervised the workers, (3) who determined the workers' salaries, and (4) 

who maintained the workers' employment records. Courts have examined a 

range of other factors including who furnished the workers' equipment, whether 

the workers received benefits, and the intention of the parties. 

Examination of any of these factors is fact-intensive, which is why "the 

question of a worker's employment status is a matter that is often determined by 

trial judges and juries" after considering all of the evidence relating to the issue, 

not just the parties' contract. Kotsovska, 221 N.J. at 588. It is rare for a court 

to determine a worker's status on summary judgment after discovery is 

completed. It is even more unlikely that the issue can be resolved on the 

pleadings alone. 
16 A-3313-16T1

Because we conclude that the Law Division's entry of the order of 

dismissal was in error, we need not address plaintiff's argument regarding the 

denial of his motion for reconsideration.

Reversed and remanded for further proceedings consistent with our 

opinion. We do not retain jurisdiction.